Kevin Naylor, Labor Consultant, Labor
Association of Wisconsin, Inc., N116W16033 Main Street,
Germantown, Wisconsin 53202, appearing on behalf of the Washington County Department
of Social
Services Employees Association, Local 809 of the Labor Association of Wisconsin, Inc.,
which is referred
to below as the Association.

The County and the Association are parties to a collective bargaining agreement
which was in effect
at all times relevant to this proceeding and which provides for the final and binding
arbitration of certain
disputes. The Association requested, and the County agreed, that the Wisconsin Employment
Relations
Commission appoint an Arbitrator to resolve grievance number 2003-30, filed on behalf of
"the
Washington County Department of Social Services Employees Association, Local 809."
Hearing on the
matter was conducted on November 6, 2003, in West Bend, Wisconsin. On
November 19, 2003,
Margaret A. Matousek filed a transcript of the hearing with the Commission. The parties
filed briefs and
reply briefs by January 27, 2004.

6685

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MA-12369

ISSUES

The parties did not stipulate the issues for decision. The Association states the issues
thus:

Did the County violate the collective bargaining agreement
when
it refused to pay Carol Hogan for
the overtime she worked on April 25, 2003, April 28, 2003 and June 9,2003?

Did the County violate the collective
bargaining agreement when it refused to pay Lori Merrick for
the overtime she worked on April 24, 2003, and April 25, 2003?

Did the County violate the collective
bargaining agreement when it refused to pay Brenda Stoffel
for the overtime she worked on April 15, 2003?

If so, what is the remedy?

The County states the issues thus:

Did the County violate the collective bargaining agreement
when
it denied overtime pay to the
Grievants for all hours worked?

Section 9.04 ­ Scheduling
Adjustments. The parties recognize that the nature of the services
provided by the Department may require adjustments in employee work schedules to meet the
requirements
of specific departmental programs, services mandated by law or exceptional circumstances
requiring the
Department to provide services at times other than normal work hours. Accordingly, the
County shall have
the right, notwithstanding the provisions of Sections 9.01 and 9.02, to assign different
workdays or
workweeks to particular employees in order to provide coverage for such situations.

Section 9.05 ­
Adjustments Within Pay Periods. Notwithstanding the provisions of
Section
9.01 and Article X, upon the mutual consent of the employee and his immediate supervisor,
hours of work
may be adjusted on a straight-time basis within a seven (7) day work period.

ARTICLE X ­
OVERTIME

Section 10.01 ­
Overtime

. Employees shall be compensated at one and one-half (1½)
times their
regular rate of pay for all hours worked in excess of forty (40) paid hours per week and in
excess of eight
(8) paid hours per day. . . .

. . .

Section 10.03 ­
Computation. For the purpose of computing overtime pay, all hours paid
for
shall be considered hours worked.

. . .

ARTICLE XXV ­
MANAGEMENT RIGHTS

Section 25.01 ­
Rights: The Association acknowledges the sole right of the County to
exercise
the power and authority necessary to operate and manage its own affairs, but such right must
be exercised
consistent with the other provisions of this Agreement and Section 111.70, Wis. Stats. Such
powers and
authority include, but are not limited to, the following:

. . .

E) To maintain efficiency of County
government operations entrusted to it.

F) To determine the
methods, means and personnel by which such operations are to be
conducted. . . .

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MA-12369

Section 25.02 ­ Not
Inclusive: The rights of management set forth above are not all inclusive,
but indicate the type of matters or rights which belong to and are inherent to management.

Section 25.03 - Exercise
of Rights: The Association and its members agree that they will not
attempt to abridge these management rights, and the County agrees that it will not use these
management
rights to interfere with rights established under this Agreement . . .

BACKGROUND

The Association filed Grievance No. 2003-30 on May 8, 2003 (references to dates
are
to 2003,
unless otherwise noted). The grievance form cites Articles 10 and 25 as the governing
provisions, and
states that the grievance turns on the experience of Lori Merrick and Carol Hogan "during
the pay period
beginning April 24 . . . and ending May 7". At the arbitration hearing, the parties stipulated
that if similar
denials occur, then the determination of Grievance 2003-30 would extend to them. At
hearing, the denials
specifically focused on Lori Merrick, Carol Hogan and Brenda Stoffel. Each is employed by
the County
in the classification of Clerk/Typist.

The Department and Departmental Policy

The County Social Services Department (the Department) is physically structured so
that one side
of its offices houses professional social workers and the other side houses paraprofessional
staff. Local
809 represents paraprofessional staff. The paraprofessional staff includes four units:
Economic Support
Services/Children, supervised by Joanne Faber; Economic Support Services/Adult and
Elderly, supervised
by Maxine Ellis; Accounting, supervised by Mary Knoeck; and Support Staff, supervised by
Kay Lucas.
Michael Bloedorn is the Department's Director.

The Department has a long-standing policy governing flexible scheduling. The policy
has been in
effect since at least August of 1985, and was revised on June 11, 1998 under the heading:
"Schedule
Adjustment Policy/Approval Procedure" (the Policy). The Policy was distributed to all
Departmental
employees, incorporated into the County's Handbook, and reads thus:

This agency has a long-standing history of assigning a manageable
workload that usually can be
accommodated with the normal work week and flexible scheduling (adjustments within pay
periods).
Coupled with the manageable workload is the expectation that there is a limited need for paid
overtime or
accumulated compensatory time, both a financial and workload liability for the agency.

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MA-12369

The purpose of this memo is to continue our
long standing policy and approval procedure for any
schedule adjustments.

Schedule Adjustment
Policy/Approval Procedure

Flexible scheduling (Straight
Time Adjustments Within Pay Periods)

Flexible scheduling or straight time
adjustments within a pay period must be in writing and
approved in advance by your supervisor.

Emergencies

Flexible Scheduling. Dealing
with emergency situations is a normal and regular part of the
work we do with children, families and adults and can usually be accommodated and
managed
as part of the assigned workload thru flexible scheduling.

Overtime/Comp Time. Some emergencies occur late in the pay period and
flexible schedule
adjustments may not be possible due to prior commitments. Whenever possible, advanced
approval should be obtained from your supervisor. If that is not possible, please forward to
your supervisor, after the fact, the case situation requiring the need for overtime/comp
time.

Overtime/comp time during a pay period.

(Excludes the assigned
Saturday person)

Work in excess of normal work days and
work weeks during a pay period requires advance
approval by your supervisor. Submit a written request including a description of the activity
and
reason current workload assignment requires need for overtime/comp time. If approved, the
request needs to accompany your time card.

The County maintains forms entitled "Request For Time Off" to
track requests to use flex-time as well as
paid leave such as vacation and sick leave. The forms make the requesting employee specify
in writing the
date, time and type of leave sought. The form also requires the supervisor to approve or
disapprove the
request in writing.

Under the Policy, there has historically been little, if any, overtime in Lucas' unit.
Flexible
scheduling is frequently used. The Economic Support units have some overtime, and more
frequent use
of flexible scheduling. This reflects that Economic Support personnel often interview clients
at hours outside
of the normal work schedule. Flexible scheduling permits this to occur with a minimum of
overtime. Faber
testified that she would authorize overtime only if a flexible scheduling arrangement could
not be reached
and it was impossible for her to cover the work with an employee who would not require
payment of
overtime. Flexible scheduling is typically done with the agreement of an affected employee
and their
immediate supervisor.

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MA-12369

The County's pay period covers two work weeks, running from a Thursday to the
second following
Wednesday. Employees fill out time cards that cover the two work week payroll period, and
specifically
note straight time and overtime hours worked, as well as specifically noting any paid time
taken off. The
employee's completed time sheet is given to their immediate supervisor, who may make
changes. The
supervisor signs the card and forwards it to the Accounting Unit, who may make changes,
and then turns
it over to the Payroll Department for payment. The time cards do not specifically note the
use of flex-time,
although the break down of numbers recorded may make such usage obvious. Flex-time is
used within
a single payroll period.

The WiSACWIS Project

The Wisconsin Statewide Automated Child Welfare Information System Project (the
Project),
came about as a consequence of federal litigation. The Project was mandated by the State of
Wisconsin,
which reimbursed affected counties for one-half of the cost of creating a database to track
child
abuse/neglect situations. The creation of the database required a large amount of data entry.
Some
counties contracted out the data entry. After discussion with Lucas, Bloedorn decided to
handle the data
entry through the Support Staff Unit. Lucas was convinced the six employees in her unit
would appreciate
and respond to overtime necessitated by the Project.

Lucas supervises six positions in the Support Staff unit. Five of the positions are
Clerk/Typists and
one is a Program Support Clerk. The normal workweek for each of these positions is
Monday through
Friday, 8:00 a.m. through 4:30 p.m., with a one-half hour lunch break. After Support Staff
Unit-wide
discussions, Lucas changed the work hours to start one hour earlier and end one hour later
than the normal
Monday through Friday hours. She also created an eight-hour shift for Saturday. The
revised hours were
to permit the normal workload to be processed with the addition of the data entry required
under the
Project. Lucas summarized the changes in a memo to the Support Staff unit, dated March
20, which states:

I have attached monthly calendars for the month of April May
& June. As of now, it is my expectation
that we will begin doing "manual data entry" April 16th, the day after
training. For now, until we get a better
feel, I am planning to work 10 hour days (Monday thru Friday from 7:00 a.m. to 5:30 p.m.)
and Saturday
(8:00 a.m. to 4:30 p.m.).

Please indicate on the attached calendars
your availability so that I can plan tohave the MDE
completed by the scheduled date.

Please return to me by Monday, March 24,
2003.

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MA-12369

Shortly after the data entry began, the Program Support Clerk dropped out of the
revised schedule and
the Saturday work was reduced from eight to four hours. Clerk/Typists were not required to
work all of
the hours, but had to advise Lucas of deviations from the revised hours. Lucas routinely
approved the
deviations.

The Circumstances Prompting Grievance 2003-30

Hogan turned in two Request For Time Off forms on March 21. Lucas approved
each. One
requested eight hours vacation on April 28, and the other requested the use of flex-time
between Noon and
4:30 p.m. on April 25. Merrick submitted two similar forms, one on April 18 and
one on April 21. Lucas
approved each. The April 18 request sought the use of one and one-half hours of sick leave
on April 24,
and the April 21 request sought four hours of vacation for April 25. These are the requests
noted in the
form initiating Grievance 2003-30.

The time card submitted by Hogan for the pay period beginning April 24 and ending
May 7, can
be summarized thus:

DAY

DATE

STRAIGHT

TIME

OVERTIME

SICK

LEAVE

VACATION

Thursday

April 24

8

2

Friday

April 25

4

1

4

Saturday

April 26

Sunday

April 27

Monday

April 28

4

1

4

Tuesday

April 29

8

2

Wednesday

April 30

8

2

Thursday

May 1

8

2

Friday

May 2

8

2

Saturday

May 3

5

Sunday

May 4

Monday

May 5

8

2

Tuesday

May 6

8

2

Wednesday

May 7

8

2

TOTALS

72

23

8

The time card submitted by Merrick for the pay period beginning April 24 and
ending
May 7, can
be summarized thus:

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MA-12369

DAY

DATE

STRAIGHT

TIME

OVERTIME

SICK

LEAVE

VACATION

Thursday

April 24

6.5

2

1.5

Friday

April 25

4

1

4

Saturday

April 26

Sunday

April 27

Monday

April 28

8

2

Tuesday

April 29

8

2

Wednesday

April 30

8

2

Thursday

May 1

8

2

Friday

May 2

8

2

Saturday

May 3

4

Sunday

May 4

Monday

May 5

8

2

Tuesday

May 6

8

2

Wednesday

May 7

8

2

TOTALS

74.5

23

1.5

4

Lucas signed each time card, and forwarded them to the Payroll Department. The
Payroll Department
modified Hogan's time card to read thus:

DAY

DATE

STRAIGHT

TIME

OVERTIME

SICK

LEAVE

VACATION

Thursday

April 24

8

2

Friday

April 25

5

3

Saturday

April 26

Sunday

April 27

Monday

April 28

5

3

Tuesday

April 29

8

2

Wednesday

April 30

8

2

Thursday

May 1

8

2

Friday

May 2

8

2

Saturday

May 3

5

Sunday

May 4

Monday

May 5

8

2

Tuesday

May 6

8

2

Wednesday

May 7

8

2

TOTALS

74

21

6

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MA-12369

The Payroll Department modified Merrick's time card to read thus:

DAY

DATE

STRAIGHT

TIME

OVERTIME

SICK

LEAVE

VACATION

Thursday

April 24

8

.5

Friday

April 25

5

3

Saturday

April 26

Sunday

April 27

Monday

April 28

8

2

Tuesday

April 29

8

2

Wednesday

April 30

8

2

Thursday

May 1

8

2

Friday

May 2

8

2

Saturday

May 3

4

Sunday

May 4

Monday

May 5

8

2

Tuesday

May 6

8

2

Wednesday

May 7

8

2

TOTALS

77

20.5

3

The balance of the background is best set forth as an overview of witness testimony not
covered above.

Carol Hogan

Hogan has worked as a County Clerk/Typist since March 18, 1996. Hogan stated
that Lucas
described the Project as an opportunity for overtime. On April 25, she worked from 7:00
a.m. until Noon.
She requested to take eight hours off on April 28 to cover a visit to Minnesota. She returned
earlier than
expected, and decided to report to work. She did so, working from 12:30 p.m. until 5:30
p.m. She turned
her time card for the payroll period into Lucas, who signed it, and sent it to the Accounting
unit, where it
was modified as noted above. On June 10, Hogan turned in a Request For Time Off Form
that sought four
hours of vacation time to cover one half of her normal shift, which she spent taking her son
to the
emergency room on June 9. She had reported for work on June 9 at 7:00 a.m., and worked
until she had
to attend to her son. She turned in a time sheet for the payroll period covering June 5
through June 18,
which noted four hours at straight time, one hour of overtime and four hours of vacation for
June 9. Lucas
signed the card, which the Accounting unit altered to reflect five hours at straight time and
three hours of
vacation, with no overtime for June 9. Hogan did not agree to these changes and no one
asked her to flex
her time prior to the changes.

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MA-12369

After the filing of Grievance 2003-30, Lucas informed Hogan that if she submitted a
Request For
Time Off form, she should work only her normal hours. This did not affect any other
Support Staff Unit
member who did not claim paid time off and worked hours outside of the normal shift.

Overtime under the Project began on April 21, and continued until the Project's
deadline of June
19. Hogan stated that she had not worked overtime prior to the Project and did not expect to
work any
after it.

Lori Merrick

Merrick has worked as a County Clerk/Typist for roughly six years, and worked no
overtime prior
to the Project. On April 25, she worked from 7:00 a.m. until Noon, then took the four
hours of vacation
approved by Lucas on April 21. The Accounting unit altered her time card without asking
her to flex her
time. Merrick submitted a Request For Time Off form on June 5, which sought forty-five
minutes of sick
leave on June 12. On the form, Lucas noted her approval and that Merrick would only work
her normal
work schedule that day. Prior to this discussion, she had not discussed the calculation of
daily overtime
with Lucas.

Michael Bloedorn

Bloedorn noted that the County seeks to minimize overtime through the use of
flexible
scheduling.
This has not posed an issue in the Support Staff Unit until the Project, since until then there
was no
overtime. The Policy not only minimized overtime, but provided flexibility to address client
and employee
scheduling needs. Flex-time is always straight time, and is typically agreed upon between
and employee
and their supervisor, but Bloedorn believed a supervisor could alter schedules to avoid the
payment of
overtime.

Bloedorn understood the Policy to preclude the payment of overtime on a day in
which an
employee used paid time off to fill an eight-hour shift. He has never received a flex-time
grievance in his
nine month tenure as Director.

Kay Lucas

Lucas has served as a Support Staff Unit Supervisor for thirteen years. She has
never
asked an
employee to flex their time. Employees on her unit use it frequently. Prior to the Project,
she had only
assigned overtime once, twelve years ago. Project overtime was flexible. Employees could
work the
revised schedule as they wished, provided they advised her when they would not do so. She
notified
Merrick when she received the time card noted above that the County would not pay
overtime on a day
in which she used paid leave. Lucas did agree, however, to sign the card and turn it in for
processing. The
Accounting Unit made the

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MA-12369

alterations, which were approved of and implemented by the Payroll Department. She
thought she
informed Hogan when she approved her Request For Time Off forms in March that she
could not expect
overtime to be paid on a day in which she took paid time off. She turned Hogan's time
sheets in believing
that the overtime would be an issue to be handled by the Payroll Department.

Stoffel reported for work at 7:00 a.m. on May 15. She left at 9:30, feeling ill.
Lucas approved
the sick leave, without considering the potential impact of overtime. When Stoffel turned in
a time sheet
stating 1.5 hours at straight time, 1 hour of overtime and 5.5 hours of sick leave for May 15,
Lucas
informed her that the Payroll Department would not pay it. Lucas ultimately signed the time
sheet, turning
it over to the Payroll Department, which altered it to state 2.5 hours of straight time and 5.5
hours of sick
leave. Stoffel later sought to take fifteen minutes of flex-time on June 3, to go to a medical
appointment.
Lucas informed her that she could take the fifteen minutes, but could not expect more than
forty-five
minutes of overtime for that day. Without seeking prior approval, Stoffel reported for work
on that day
at 6:45 a.m. instead of 7:00 a.m. Lucas decided, however, to approve one hour of overtime
for the day.
Hogan also used flex-time that day. She flexed forty-five minutes to permit her to take her
son to the
doctor. She received two hours of overtime because she worked from 7:00 a.m. until
6:15 p.m.

Mary Knoeck

Knoeck has been a supervisor for seven years. Her unit uses flexible scheduling
frequently, in
increments as small as fifteen minutes. She has not asked employees to flex their time, but
believes she has
the authority to do so. She has never granted overtime on a day in which the employee did
not work a full
shift. On October 31, 1996, Patty Peterson, an Account Clerk under her supervision, called
in sick, then
worked four and one-half hours in the afternoon. She turned in a time card with four hours
of sick leave
and four and one-half hours of straight time. Knoeck signed the time card, but the Payroll
Department
altered the sick leave hours claimed from four to three and one-half. Peterson did not grieve
this action.

JoAnne Faber

Faber has been a supervisor for twenty-seven years. The ten employees she
supervises normally
work from 8:00 a.m. until 4:30 p.m. However, to service their clients, her employees
frequently flex their
schedules. The flexing is done by mutual agreement. This minimizes overtime, but due to a
vacancy the
caseload in her unit at the time of hearing demanded she authorize an hour or so of overtime
for one to two
employees per pay period. She will seek alternatives to overtime, including the reassignment
of cases. She
believes she has the authority to require an employee to flex their time, but has never done
so.

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MA-12369

On September 24, Faber approved the use of one hour of sick leave for Kay Liesse to
attend a
medical appointment on October 8. On October 8, Liesse took the hour, then returned to
work, working
until 5:00 p.m. Liesse could have claimed seven hours worked, one hour of sick leave and
one-half hour
of overtime. Faber asked, and Liesse agreed, to submit a time card with seven and one-half
hours of work
and one-half hour of sick leave, flexing the remaining one half-hour.

She stated she frequently authorizes flex-time at straight time to be taken at a point
subsequent to
an employee's working a day in excess of eight hours to meet client needs. She documented
four such
instances for Julie Williamson and two for Sandy Potter. She also permits employees to
combine flex-time
with paid time off on the same workday, as documented with Julie Fritts in September and
October.
Similarly, Faber allows employees to combine vacation time with flex-time on the same day,
as documented
regarding La Verne Schlager in September. When an employee works into an approved
vacation leave
to attend to an interview, Faber will permit the employee to submit a time card claiming less
vacation time
than originally approved.

Further facts will be set forth in the
DISCUSSION
section below.

THE PARTIES' POSITIONS

The Association's Brief

The Association contends that Section 10.03 "clearly requires the County to include
paid time off
as hours worked when calculating overtime", and is concise and sufficiently clear that it is
not "open to
more than one interpretation." A detailed review of the documentary evidence confirms this,
and a review
of the testimony indicates, "several of the County's witnesses have admitted that its actions
in the current
matter have violated the collective bargaining agreement."

More specifically, the Association argues that the provisions of the labor agreement
"clearly require
the County to include paid time off in the calculation of overtime." Nothing in the
agreement permits the
County to "retroactively substitute flex-time for other forms of paid time off." Significantly,
actual
modification of time cards was "made by individuals who lack the authority to alter time
cards".

Nor has the County been able to demonstrate that past practice can justify its actions.
Since the
governing agreement provisions are clear, recourse to past practice is inappropriate. Even if
such recourse
was appropriate, to be binding, a past practice must be "mutually accepted and
not merely an isolated
incident." In this case, the only evidence of practice is the County's alteration of Peterson's
time card.
Peterson did not grieve this action, but the evidence fails to show other similar actions or any
reliable
indication that the Association was

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MA-12369

aware of the County's action. Nor will the evidence support an assertion that such
action has been
frequent, or consistently applied over a considerable period of time. Significantly, testimony
of County
witnesses establishes that the Project is unique, and thus cannot support the assertion of
consistent conduct.
In fact, the evidence shows that entry of flex-time on a time card has in the past manifested
mutual
agreement between an employee and their immediate supervisor.

Since this leaves clear contract language as the only basis for interpretation, the
grievance must be
sustained. The Association concludes that the County should be ordered to "honor the
employee time
sheets submitted by Carol Hogan, Lori Merrick and Brenda Stoffel as originally submitted."

The County's Brief

After an extensive review of the evidence, the County contends that the governing
agreement
language is "clear and unambiguous on its face and must be given its plain meaning." If the
language is
found unclear, then "the past practice of the parties supports the County's interpretation of
the contract
language in this case."

Section 9.04 governs work schedules and "is clear and unambiguous." The Project
met the
conditions set by Section 9.04 to alter the normal work schedule set by Section 9.01.
Section 25.01
underscores the authority at issue, since "the County has determined that operations will be
conducted more
efficiently if the extended hours worked are first paid as flex-time to cover absences due to
vacation, illness,
or emergency, leaving the remainder of the extra hours worked to then be paid as overtime."

Since 1985, the Department "has enacted a . . . policy of avoiding overtime in favor
of flex time".
As implemented, the policy "as a general rule" establishes that "the County will not pay
overtime on the
same day that either vacation time or sick time has been used unless the employee actually
worked more
than eight (8) hours in one day." Similarly, Section 9.05 permits the adjusting of hours "on
a straight time
basis" where the employee and immediate supervisor mutually agree.

Section 10.01 cannot persuasively be read to demand the payment of overtime hours
for the
Grievants. Doing so reads the authority of Section 9.04 out of existence, and overturns the
established past
practice "of using flex time to avoid overtime, whenever possible." Beyond this, the
reference to "paid
hours" in Section 10.01 presumes the County's exercise of its management right of "what
hours will be
included as time paid". Specific examination of the evidence establishes that the County
appropriately
exercised its unambiguous contractual authority to deny overtime pay to each Grievant.

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MA-12369

Even if the contract is considered ambiguous, consistently followed past practice
establishes that
the County's denial of overtime was appropriate. That practice is to deny overtime except
"when an
employee has not worked in excess of eight (8) hours in one day." Sick leave and vacation
cannot be
combined with work time to reach the eight-hour threshold permitting overtime payment.
Evidence
regarding Peterson, Williamson and Potter establishes this point. Beyond this, the County
flexes hours
worked outside of the normal schedule to leave "employees' sick banks intact for future use."
Evidence
regarding Liesse and Fritts establishes this point, as well as establishing that the supervisor
unilaterally
determined to flex the time. Evidence regarding Oilschlager establishes that the County will
offset vacation
time claimed with time worked outside of the normal schedule, "within the same pay
period." Evidence
concerning Peterson establishes that the Department will not approve overtime "when an
employee
combines hours worked with sick time".

The County concludes that the evidence demands "that the grievance be dismissed
with prejudice
in its entirety."

The Association's Reply Brief

The Association contends that many of the County's arguments "conflict with
testimony". More
specifically, the Association argues that although it is undisputed that "economic support
specialists use flex-time in order to accommodate the needs of clients who are unable to meet
during normal business hours",
this grievance "involves an entirely different set of facts." Unlike other cases, the Project
increased the
number of work hours. Had the hours not been increased, "the project could not have been
completed
by the State mandated deadline." Thus, there can be no persuasive assertion that there is a
consistent past
practice. Witness testimony confirms that the policy was not followed during the Project. If
the County
wished to avoid overtime, it could have denied employees permission to "come in early or
stay late on days
they requested to use paid time off."

To permit the County to retroactively alter time cards reads Section 10.03 out of
existence. To
permit employees to secure supervisory approval to take time off, and then to permit the
Payroll
Department to recharacterize the hours guts the overtime provisions.

That the Association has never grieved the use of flex-time, where an employee and a
supervisor
mutually agree cannot be extended to conclude the Association has acquiesced in the use of
flex-time to
avoid the payment of overtime. It follows that the "Arbitrator (should) reject the County's
attempt to
circumvent the collective bargaining process and . . . uphold the grievance."

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MA-12369

The County's Reply Brief

Since the County "has the management right to dictate who administers the collective
bargaining
agreement, it follows that Payroll Department personnel can retroactively recharacterize time
cards. The
County has chosen not to vest that authority exclusively in departmental supervisors. Section
25.01 leaves
that authority with the County.

Section 9.04 may not, standing alone, authorize the retroactive designation of time
paid as flex-time,
but it does govern adjustments in work schedule. This has a direct bearing on "time paid"
and "time paid"
is a consideration made by the Payroll Department. The evidence falls short of establishing
any sort of past
practice violated by the Payroll Department. The Association's contentions threaten to blur
the necessary
line between management and employee regarding "who has the authority to determine the
hours paid in
a given pay period." An examination of the record establishes that "(n)either the individual
employee nor
the unit supervisor has the authority to make this final decision on the appropriate hours
worked and paid
for that particular pay period." Rather, that final determination is made in the Payroll
Department. Nor
does the citation of the unique nature of the Project alter this. Increased hours under the
project did not
demand overtime. Rather, they established the opportunity for overtime. The project did
not void County
policy or past practice.

In sum, the grievance cannot persuasively be characterized as a necessary
interpretation of
"whether the County has the right to retroactively adjust hours paid" as the Association
asserts. The
County's right to determine proper payment is the issue, and the evidence establishes it
determined the
proper payment at the Payroll Department level.

Section 10.03 does not govern the grievance, because "the hours in question were
never
considered overtime." Rather, the County determined the hours were "extra hours worked to
first be
flexed to offset the use of vacation and sick time." Under Sections 9.04, 9.05 and 25.01,
they "were never
eligible for overtime." Since the County has the right to adjust the hours worked to avoid
the payment of
overtime, the provisions of Section 10.03 never come into play, and the Association's
attempt to undermine
the procedures by which the hours were adjusted must be rejected.

The Association's arguments regarding past practice must be rejected. Past practice
can be used
to supplement the agreement where it may be silent or ambiguous, as in the case regarding
which
department "has the authority to designate hours worked and hours paid". That a practice
must be mutually
agreed to underscores the significance of the evidence of Association acquiescence regarding
the
adjustment of hours to avoid overtime. Nor can the consideration of past practice ignore that
such
evidence extends to "the entire bargaining unit", not just Clerk/Typists.
Viewing the record as a whole, the
County concludes that "the grievance (should) be dismissed with prejudice in its entirety."

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DISCUSSION

The parties did not stipulate the issues. I have adopted the County's statement. Each
party's
broadly puts the "collective bargaining agreement" at issue. The County's statement,
however, focuses the
interpretive issue on "all hours worked." This points the analysis to Section 10.03, but the
County's
statement of the issue succinctly points out that examination of this section draws in other
contract
provisions and past practice.

Section 10.03 defines "all hours paid for" as "hours worked." The reference to
"hours worked"
calls in the provisions of Section 10.01, which provides time and one half for "all hours
worked . . . in
excess of eight (8) paid hours per day." Standing alone, these provisions, as the Association
points out,
can be considered clear. The provisions do not, however, stand alone. Section 9.04 permits
the County
to adjust work schedules and Section 9.05 recognizes the extensive flexing of hours "on a
straight time
basis" that is codified by the Policy and Departmental practice. Even if part of this web of
contract
provisions is clear, their relationship is not.

As the County views the grievance, the interpretive issue is whether these provisions
establish a
system by which the County determines which hours are eligible for overtime calculation
under Section
10.03 and payment under Section 10.01.

On the facts posed by this grievance, this view is unpersuasive. To accept it reads
Section 10.03
out of existence, and each contract provision must be given effect. Under the County's
view, "hours paid"
on an eight-hour day cannot include vacation, sick leave or flex-time. This means that
"hours paid for" is
identical to "hours worked." If that is the case, there is no role for Section 10.03.

This broad statement of the conclusion obscures the interpretive difficulty posed by
the grievance,
and thus requires some elaboration. The fundamental difficulty turns on the extensive use of
flexible
scheduling that characterizes the bargaining relationship. This dilemma cannot be resolved in
the abstract.
Rather, its impact must be minimized by restricting the broad conclusion stated above to the
facts posed
by the grievance.

The Project is contractually and factually unique. Factually, it is unique because its
fundamental
impact was on the Support Staff Unit, and it represents the only significant overtime
opportunity in the work
experience of each grievant. This has a contractual and policy bearing. The Policy is
directed primarily
at the Economic Support Services Unit. The "normal work week" of a Support Staff Unit
employee has
historically reflected Sections 9.01 and 9.02. The "normal work week" of an Economic
Support Services
Unit employee cannot be as easily standardized, given the need for direct client contact.
Beyond this, the
normal Economic Support Services Unit workload will, with some frequency, pull an
employee outside of
a normal eight-

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hour workday and forty-hour workweek. The Project squarely posed the need for the
County to alter the
"normal" schedules for Support Staff Unit employees set by Sections 9.01 and 9.02 to allow
necessary
data entry. Unlike the ongoing caseload addressed in the Economic Support Services Unit,
the alteration
caused by the Project increased the normal workload for a clearly identifiable period of time.
On a
contractual level, Section 9.05 recognizes the flexible scheduling system, but bases it "upon
the mutual
consent of the employee and his immediate supervisor."

To read the Articles IX and XXV as broadly as the County seeks thus risks upsetting
a
consensually developed series of practices that implement the broad provisions of Sections
9.01, 9.02 and
9.05. Bad facts can make bad law. In this case, unique and non-recurrent facts should be
treated as the
unique events they represent rather than as a basis for setting Department-wide precedent.
The flexible
scheduling system under the Economic Support Services Unit has limited direct bearing on
the Project.
Outside of the Project, the flexible scheduling system used in the Support Staff Unit has
uniformly involved
the substitution of straight time hours. Only with the Project did the flexing of a straight
time hour to avoid
the payment of an overtime hour, without the mutual agreement of employee and supervisor,
become an
issue.

Unlike the County's view, the Association's grants meaning to the governing
contractual provisions.
The Project permitted the alteration, under Section 9.04, of the normal work schedules set by
Sections
9.01 and 9.02. Flexible scheduling was still possible under Section 9.05, but only
"upon the mutual consent
of the employee and his immediate supervisor." Section 10.03 has meaning because "all
hours paid for"
are considered "hours worked," granting Section 10.01 meaning by permitting the overtime
payment for
"all hours worked . . . in excess of eight (8) paid hours per day." It is evident that the
Grievants sought to
maximize the overtime opportunity, as evidenced by Hogan's reporting to work unexpectedly
on April 28,
and Stoffel's reporting to work earlier than expected on June 3. These incidents do not,
however, pose
a significant issue regarding supervisory approval of overtime. Lucas approved each
employee's actions.

The incidents do, however, pose an interpretive issue concerning the conclusions
stated above.
On April 28, Hogan did not work a full eight hour shift. Rather, she used vacation to count
toward the
overtime she claimed. Due to the dispute on overtime calculation, Lucas forwarded Hogan's
time sheet
to the Payroll Department, which unilaterally altered it. After the April and May incidents
prompted
Grievance 2003-30, Lucas took care not to authorize overtime on days in which an employee
took paid
leave and could not otherwise fill an eight-hour shift. Thus, on June 3, Lucas required both
Hogan and
Stoffel to work a full eight hours to claim the overtime. From the County's perspective, this
addressed the
Policy, since neither employee used paid time off as a basis to fill the eight-hour shift that
makes overtime
payment possible. From the perspective of the conclusion stated above, Lucas withheld
approval of
overtime, thus posing an issue regarding flexible scheduling. Hogan and Stoffel, on June 3,
accepted the
flexible

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scheduling arrangement to secure the payment of overtime. Unlike the prior incidents,
the Payroll
Department did not unilaterally alter their time sheets. The Association does not challenge
the County's
authority to approve overtime prior to an employee claiming it. Thus, the June 3 incidents
must be treated,
as an interpretive matter, as an example of consensual flexible scheduling under Section 9.05
rather than
an issue of non-consensual alteration of an overtime calculation under Section 10.03.

In sum, the grievance narrowly poses the contractual validity of the Payroll
Department's unilateral
alteration of certain April, May and June time sheets. That action has no evident support
under Section
9.05 and violates Sections 10.01 and 10.03.

Before closing, it is appropriate to tie this conclusion more closely to the parties'
arguments. The
provisions of Article XXV afford limited assistance in the resolution of the grievance. The
general authority
stated in that provision must, by its own terms, be exercised consistently with other
agreement provisions.
Section 10.03 specifically permits "all hours paid for" to be considered "hours worked" in
the calculation
of the time and one half premium established in Section 10.01. Citation of the general
authority to make
County processes efficient under Article XXV cannot be used to invalidate specific
provisions governing
overtime payment under Sections 10.01 and 10.03.

Testimony of supervisory personnel on whether they followed the contract or the
Policy has no
bearing on the conclusions stated above. Even if it is concluded that supervisors admitted a
contract
violation, such an admission has little persuasive force. To give force to a supervisory
admission of violation
implies contrary testimony is similarly binding. Neither is, because the issue remains the
interpretation of
the labor agreement. The Association and the County created the labor agreement. None of
the testifying
supervisors played any role in the negotiation process, and thus none can be considered to
have meaningful
insight into what County or Association negotiators intended when they created the
provisions of Articles
IX and X.

Nor can Lucas' approval of the April and May time sheets afford guidance in the
interpretation of
the labor agreement. On this issue, the provisions of Article XXV play a role. Under
Article XXV, who
exercises binding payment authority is the County's determination, and there is no reliable
evidence that
the County authorized Lucas to exercise binding authority by signing a time sheet. Rather,
the evidence is
that Lucas, when confronted with the interpretive dilemma regarding the calculation of
overtime, sought
direction from her supervisors, and was informed to pass the problem to the Payroll
Department.

The County's assertion that it can determine which hours are eligible for overtime
seeks to preserve
the viability of the Policy. It does so, however, at too great a contractual cost by reading
Section 10.03
out of existence. The County's authority to authorize overtime is a more contractually sound
basis to
address the scope of the overtime payment obligation. In this case,

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the authority to approve overtime, which the Association does not dispute, was not
brought to bear until
after the filing of the grievance. Restricting the conclusions stated above to the unique facts
posed by the
grievance should minimize the risk of damaging the flexible scheduling process. In any
event, a grievance
arbitration award is not an appropriate vehicle to turn the consensual processes of Section
9.05 into a
binding exercise of County authority.

The parties have not raised any issue regarding remedy. The Award entered below
states a broad
make whole remedy. The Award essentially orders the County to pay the time sheets as
originally
submitted by the Grievants. Doing so will throw each Grievant's paid leave balances off to
the extent the
County originally altered them. The Award permits the County to make the necessary
readjustment. The
parties stipulated that the Award could impact facts not brought forward during the
arbitration hearing. This
determination must be left to the parties.

AWARD

The County did violate the collective bargaining agreement when it denied overtime
pay to the
Grievants for all hours worked.

As the remedy appropriate to the County's violation of Sections 10.01 and 10.03, the
County shall
make the Grievants whole by paying each Grievant the difference between the amount
actually paid by the
County for the time sheets submitted by each Grievant for the April 24 ­ May
7; the May 8 ­ May 21; and
the June 5 ­ June 18 payroll periods and the amount the County would have paid had
it not altered those
time sheets. The County may adjust the paid leave balances of each employee to the extent
necessary to
make payment of the amount noted above consistent with each Grievant's paid leave
balances.